Case BriefsSupreme Court

Supreme Court: Explaining the scope of ‘cruelty’ as a ground for dissolution of marriage, the Bench of R.K. Agrawal and A.M. Sapre, JJ held that a petition seeking divorce on some isolated incidents alleged to have occurred 8-10 years prior to filing of the date of petition cannot furnish a subsisting cause of action to seek divorce on the ground of cruelty after 10 years or so of occurrence of such incidents. The incidents alleged should be of recurring nature or continuing one and they should be in near proximity with the filing of the petition.

In the present case, the husband had alleged that his wife’s behaviour towards his family immediately after their wedding in the year 1999 amount to cruelty. However, they continued to live together and 2 daughters were born out of the wedlock in 2002 and 2006. Considering the facts of the case, the Court said that few isolated incidents of long past and that too found to have been condoned due to compromising behavior of the parties, as admittedly both lived together till 2006 and the appellant gave birth to their second daughter in 2006, cannot constitute an act of cruelty within the meaning of Section 13 (1)(ia)of the Hindu Marriage Act, 1955.

It was noticed that most of the incidents of alleged cruelty pertained to the period prior to 2006 and some were alleged to have occurred after 2006. Those pertained to period after 2006 were founded on general allegations with no details pleaded such as when such incident occurred (year, month, date etc.), what was its background, who witnessed, what the appellant actually said etc. Hence, the marriage between the parties was held to subsist. [Suman Singh v. Sanjay Singh, 2017 SCC OnLine SC 215, decided on 08.03.2017]

Case BriefsHigh Courts

Delhi High Court: There was an appeal against the decision of the Family Court  which had dismissed the request for annulment of the marriage between the respondent and appellant on ground of desertion and cruelty by wife. The High Court reversed the order of Family Court and even noted that certain observations made by it were contrary to law. The wife had stated before the Court that her husband was more interested in other girls than in he and she had herself seen him with a girl to which he instead of explaining, had abused her without telling about the girl. Also, she had at several occasions received her husband’s phone from different girls.

To this allegation, response of the Family Court was that the husband must remove the suspicion from his wife’s mind and said that unchastity by a wife is to be viewed seriously because a higher level of fidelity is expected from a wife and it denied treating the allegation of infidelity made against the husband as mental torture. The Division Bench  expressed their shock at such a gender bias approach of the Family Court and made an important observation that an act of infidelity by either spouse would be treated on equal footing and amount to mental cruelty to other spouse. However, the facts of the case were such that the wife was unable to prove her allegations against her spouse.

In the present case, another important observation made by the Court relying on the facts was that the relations between husband and wife were more or less spoilt and they had reached the prime of their age. Also, they found out that there would be no good cause served by re-uniting them as the children were already major and could take care of themselves. It held that there was an irretrievable breakdown of marriage between both the parties in the case before them and granted the decree of divorce on the same ground while cruelty of one against the other was not sufficiently proved. However, there were serious allegations of both against each other indicating that compelling them to live with each other would in itself be an act of cruelty toward them. [Navratan Baid v. Neetu Baid, 2017 SCC OnLine Del 6884, decided on 6.02.2017]

Case BriefsHigh Courts

Delhi High Court: While upholding the impugned judgment of the Family Court granting divorce to the parties, the Division Bench of Pradeep Nandrajog, Yogesh Khanna, JJ. found that the unilateral withdrawal of consent by the appellant from a settlement deed for divorce by mutual consent, without any sufficient cause, amounted to mental cruelty.

The respondent wife had filed a petition for divorce under Section 13(1)(ia) of Hindu Marriage Act alleging that the appellant demanded dowry from her, took away her money and belongings, and casted aspersions on her character. On the other hand, the appellant denied the allegations of cruelty and rather alleged that the respondent was getting rid of him by filing divorce since he is a heart patient. Later, the appellant gave an apology letter to the Assistant Commissioner of Police, admitting his wife’s allegations and seeking reconciliation. However, he contended that the letter was written merely to satisfy false ego of his wife. The appellant had also entered into a settlement with the respondent agreeing to divorce on mutual consent on satisfaction of certain conditions. However, before the Family Court, the appellant withdrew his consent from the settlement deed.

The Court noted that no prudent man would write such an apology, as written by the appellant, for the acts he never committed, and found his contention that such writing was merely to satisfy the ego of his wife, to be frivolous. The Court also noted that though the appellant asserted his right to withdraw his consent at any time prior to the divorce being granted by mutual consent, but when there was no allegation that he signed the Settlement due to force, fraud or under influence and also when the respondent had acted upon the Settlement by forsaking her claim to custody of their son and of her permanent alimony, then the withdrawal of consent would have a different connotation as it adds to the cruelty meted to her. The Court thus concluded that the totality of the evidence established the mental cruelty upon the Respondent by the Appellant, and there was no infirmity in the impugned judgment passed by the Family Court. The appeal was accordingly dismissed. [Rajiv Chhikara v. Sandhya Mathur, 2016 SCC OnLine Del 6224, decided on 08.12.2016]

Case BriefsHigh Courts

High Court of Kerala: Deciding the question on whether subsistence of matrimonial relationship is a sine-qua-non for seeking reliefs under Sections 18 and 20 of the Protection of Women from Domestic Violence, 2005 (D.V. Act), the Bench of Sunil Thomas, J. ruled that even a divorced wife is entitled to initiate proceedings under Sections 18, 19, 20, 21 and 22 of the D.V. Act to seek appropriate reliefs. It was held that the scope of the DV Act is not confined within the limits of time and space and even after the dissolution such obligations continue.

The Court said that though it may appear to be paradoxical to argue that protection orders can be sought even after separation of spouses, such a cause of action may not be rare, which arises subsequent to the divorce, but relatable to the earlier matrimonial relationship. It is not unusual that even after divorce, certain obligations arising from past matrimonial relationship continue, like, maintenance, custody of children, liability to pay amounts or assets received, operation of bank accounts and personal safety of divorced wife and children born in the wedlock. It will be illogical and absurd to hold that the moment of divorce is granted, scope of protection order also ceases.

In the present case, the petitioner’s wife and child sought maintenance under Sections 18 and 20, after their divorce in May 2015, invoking Section 13-B of the Hindu Marriage Act. The reliefs sought were a protection order against domestic violence, return of gold ornaments and passport of the respondent. The petitioner sought to quash the above proceedings in lieu of the specific, categoric agreement that they had entered into that the wife will not claim ornaments, money or maintenance against the husband in future and also that the reliefs can be sought only during the subsistence of the marriage and that the marriage had been brought to an end legally and factually.

The Court rejecting the petitioner’s contention, held that contracting out of the statutory rights conferred on the wife under Sections 19 to 22 of D.V. Act is against public policy and hence cannot be recognized, unless it is proved that there was a mutually satisfactory settlement of all claims. The Court, hence rejected the contention of the petitioner and held that the reliefs sought is not maintainable and that the legally divorced wife has a locus standi during her entire life-time. [Bipin v. Meera D.S., 2016 SCC OnLine Ker 19559, decided on 13.10.2016]

Case BriefsSupreme Court

Supreme Court: Stating that extra-marital relationship, per se, or as such would not come within the ambit of Section 498-A IPC, the Court held that it would be an illegal or immoral act, but other ingredients are to be brought home so that it would constitute a criminal offence. It was further said that solely because the husband is involved in an extra-marital relationship and there is some suspicion in the mind of wife that cannot be regarded as mental cruelty which would attract mental cruelty for satisfying the ingredients of Section 306 IPC.

In the present case, the deceased had committed suicide due to the alleged extra-marital affair of her husband with a girl named Deepa, who later committed suicide not being able to digest the humiliation. The Couet said that the present case had the potentiality to shock a sensitive mind and a sincere heart, for the materials brought on record show how “suspicion” can corrode the rational perception of value of life and cloud the thought of a wife to such an extent, that would persuade her to commit suicide which entail more deaths, that is, of the alleged paramour, her mother and brother who being not able to emotionally cope up with the social humiliation, extinguish their life-spark.

Explaining the concept of ‘cruelty’, the Court said that coercive harassment can have the attributes of cruelty that would meet the criterion as conceived of under Section 498-A of the IPC. Thus, the emphasis is on any wilful conduct which is of such a nature that is likely to drive the woman to commit suicide.

The bench of Dipak Misra and Amitava Roy, JJ said that in such a situation, it is extremely difficult to hold that the prosecution has established the charge under Section 498A IPC and the fact that the said cruelty induced the wife to commit suicide. The Court said that the wife was guided by the rumour that aggravated her suspicion which has no boundary but such an event will not constitute the offence or establish the guilt of the accused-appellant under Section 306 of the IPC. It was held that if the husband gets involved in an extra-marital affair that may not in all circumstances invite conviction under Section 306 of the IPC but definitely that can be a ground for divorce or other reliefs in a matrimonial dispute under other enactments [K.V. Prakash Babu v. State of Karnataka, 2016 SCC OnLine SC 1363,  decided on 22.11.2016]


Case BriefsSupreme Court

Supreme Court: Dealing with the case where the husband had sought divorce from his wife on the ground that she was forcing him to leave his parents as he was proving them financial support, the Court said that in a Hindu society, it is a pious obligation of the son to maintain the parents. If a wife makes an attempt to deviate from the normal practice and normal custom of the society, she must have some justifiable reason and hence, the Karnataka High Court erred in holding that mere monetary consideration was a justifiable reason to separate the husband from his parents.

The Bench of A.R. Dave and L. Nageswara Rao, JJ added that no son would like to be separated from his old parents and other family members, who are also dependent upon his income, the Court also said that the persistent effort of the wife to constrain the husband to be separated from the family would be torturous for the husband and will constitute as an act of ‘cruelty’.

The husband had also contended that the wife had levelled serious allegations against him regarding his character and about his extra-marital relationship with the maid named ‘Kamla’. However, it was found that no maid named Kamla worked in their house. Hence, the Court said that except for the baseless and reckless allegations, there is not even the slightest evidence that would suggest that there was something like an affair of the husband with the maid named by the wife. On this the Court said that to suffer an allegation pertaining to one’s character of having an extra-marital affair is quite torturous for any person – be it a husband or a wife and amounts to mental cruelty. [Narendra v. K. Meena, 2016 SCC OnLine SC 1114, decided on 06.10.2016]

Case BriefsHigh Courts

Delhi High Court: Hearing an appeal against the Family Court’s order dismissing the appellant husband’s petition for dissolution of marriage on grounds of cruelty, the Court observed that the law pertaining to cruelty is if by resuming cohabitation the spouse claiming victim of cruelty forgives the other spouse who commits the cruelty, the alleged act of past cruelty cannot be relied upon to seek divorce on account of the cruelty unless they are revived by subsequent acts of cruelty.

The appellant/husband got married to the respondent/wife on November 22, 2004 according to Hindu rites and ceremonies and a son was born on January 01, 2006. The husband filed a petition under Section 13(1)(i-a) of Hindu Marriage Act, 1955 citing several instances of cruelty stated to have been committed by the respondent/wife.

While observing that there was no allegation of physical cruelty being committed by the wife and divorce is being sought on the allegations of mental cruelty, held that the appellant husband failed to prove that he was treated with cruelty.

The Bench of Pradeep Nandrajog and Pratibha Rani, JJ observed that the respondent did not seek dissolution of marriage on account of desertion under Section 13(1)(i-b) of the Hindu Marriage Act but on account of the mental cruelty being committed by the respondent wife. The Court agreed with the findings of the Family Court that none of the incidents enumerated except the accusation of illicit relationship with his bhabhi or creating a scene when he was alleged to be in his bhabhi’s room, amounted to mental cruelty of a level envisaged under Section 13(1)(i-a) of the Hindu Marriage Act. The Court held that it was not a case of dissolution of marriage on the ground of cruelty being caused to the appellant husband. Even if there was any act of mental cruelty, the same was condoned by the appellant by cohabiting till his wife left on April 06, 2008. There was no instance of cruelty being committed by the respondent wife thereafter.

The appellant also urged that the marriage had broken down irretrievably as more than eight years had passed since the respondent wife had left the matrimonial life, hence the marriage may be dissolved by a decree of divorce. Dismissing the appeal, the Court observed that the wife had nowhere expressed her desire to seek a divorce, besides no sincere effort was made by the appellant to save the marriage by remaining in touch with his wife and son or to provide some amount for better upbringing of their son. The case was to seek dissolution of marriage on account of cruelty and not on desertion, hence the appellant was not entitled to seek a decree of divorce claiming that the marriage had broken down irretrievably. [Neeraj Kumar v. Pooja Verma,  2016 SCC OnLine Del 4625, decided on August 19, 2016]

Case BriefsHigh Courts

Madras High Court: While deciding upon an appeal against the order and decree passed by the Family Court, Tirunelveli, the Division Bench of K.K. Sasidharan and B. Gokuldas, JJ., set aside the decision of the Family Court dismissing the joint petition for dissolution of marriage of the appellants for want of reasons for separation. The Court further observed that the Family Courts are not allowed to enlarge the scope of enquiry under Section 13B (2) of the Hindu Marriage Act, 1955, and once it is satisfied that the essential requirements under Section 13B (2) has been fulfilled and substantiated then the Family Court must venture to grant the decree of divorce to the parties. It is not for the Family Court to decide as to whether parties were justified in living separately as it is not the scope of a petition filed under Section 13-B of the 1955 Act.

In the present case, the appellants had filed a joint petition under Section 13B (2) of the 1955 Act with mutual consent seeking for dissolution of marriage as the appellants were living separately and there was no chance of any re-union. However their petition was dismissed as the Family Judge noted that the parties have not mentioned the reasons for their separation.

Perusing the facts of the case, the Court observed that the parties have been living separately form 18.04.2014 and as per the affidavit presented by the appellants there has been no cohabitation between them since the stated date of separation. The Court observed that the only requisite of Section 13B (2) is that the parties applying for dissolution of marriage must be living separately for a period of one year or more, irrespective of any reason for doing so, and when the ingredient was satisfied by the appellants in the present case, it was unnecessary for the Family Court to enquire about the reasons behind their separation. As per the provision the only duty of the Family Court was to ensure that whether the marriage has been solemnised and that the averments in the petition are true. The Court also observed that when the parties were willing to part ways as their marriage had turned out to be a failure, the Family Court should have respected the sentiments of the parties and should have granted the divorce. With these observations, the Bench set aside the order of the Family Court and granted the decree for dissolution of the marriage of the appellants. [A.C. Mathivanan  v B. Sathyabama, 2016 SCC OnLine Mad 8884, decided on 03.08.2016]


Case BriefsHigh Courts

Karnataka High Court: Expressing concern over the insensitive approach of the Family Court, Bellary in the present case wherein it had granted a decree of divorce in favour of the respondent/ husband without properly analyzing the medical evidences ascertaining the medical condition of the appellant/wife, the Division Bench of H.G. Ramesh and Rathnakala, JJ., observed that the Family Court acted with extreme insensitivity by branding the appellant wife to be a complete paranoid schizophrenic when the medical evidences were clearly indicating that she was capable to lead a normal life with regular medication and family support. The Court observing the negative impact of the ‘condemnation’ by the Family Court upon the sentiments of the wife, cautioned the Family Courts in future to be alert and alive in each case that comes before it. The Court went on to say that the Family Courts must understand the distinction that each case carries due to its facts and circumstances, therefore a Judge cannot afford to “sit with a preoccupied mind and extract reasoning’s from the void, when the record before him is bereft of legal evidence”.

In the present case, the respondent husband had been granted a divorce decree under Section 13(1) (iii) of the Hindu Marriage Act, 1955, as according to his pleadings, his wife (appellant) was suffering from ‘Auditory Hallucinations’. The Family Court had allowed the petition both on the grounds of mental cruelty and incurable unsoundness of mind. Challenging the decree, V. Vidya Iyer, representing the wife, contended that though the appellant was suffering from paranoid schizophrenia, the doctors of NIMHANS had made it clear that regular check ups and medication can control her suffering and she can ably discharge her marital responsibilities, however the condition is incurable.

The Court upon perusing the evidences and the opinions of various psychiatrists observed that no case was made out under Section 13(1) (iii) of the Hindu Marriage Act, because the appellant falls under the category of those schizophrenic patients who can be kept under control with regular medication. The Court further noticed that the appellant had successfully completed her education without any hassles related to her mental health. The Court even gave the example of renowned mathematician John Forbes Nash Jr. who was also a paranoid schizophrenic, but went on to win the Nobel Prize. The Court highlighted that how his wife stood by him during his trying times. The Court further expressed its anguish over the fact that the Family Court, in the absence of any pleading or proof by the husband, itself comprehended the case to be of violation of Section 5 of Hindu Marriage Act and declared the wife to be unfit for marriage and procreation, thereby transgressing its propriety and jurisdiction. The Court with the above observations, set aside the divorce decree. [Shilpa v. Praveen S.R., 2016 SCC OnLine Kar 2642 decided on 20.07.2016]

Case BriefsSupreme Court

Supreme Court: In a divorce matter, where the wife was found suffering from a life threatening disease, the Court held that it is a duty of the husband to take care of the health and safety of the wife and provide facilities for the her treatment.

The husband had sought divorce on ground that his wife had committed various acts of cruelty after solemnization of their marriage. The matter was later transferred to the Supreme Court Mediation Centre where the husband had agreed to pay Rs.12,50,000 towards full and final settlement as alimony, maintenance for past and future or any other claim of the petitioner-wife. In a subsequent application it was urged that divorce be granted by way of mutual consent as the petitioner-wife was in urgent need of funds for her medical treatment.

Considering the abovementioned facts, the bench of M.Y. Eqbal and C. Nagappan, JJ said that it cannot be ruled out that in order to save her life by getting money, the petitioner-wife agreed for a settlement of dissolution of marriage. The Court further said that it is a pre-existing duty of the husband to look after her comforts and not only to provide her food and clothes but to protect her from all calamities and to take care of her health and safety.

Directing the husband to pay Rs. 5, 00, 000 out of Rs.12,50,000/- to the petitioner-wife immediately within a week for her treatment and meeting other medical expenses, the Court held that After the petitioner is fully cured from the disease or within six months whichever is earlier, the Family Court at Hyderabad, where the divorce petition is ordered to be transferred, shall take up the case along with a fresh application that may be filed by the parties under Section 13B of the Hindu Marriage Act, 1955 for divorce by mutual consent.[ Vennangot Anuradha Samir v. Vennangot Mohandas Samir, 2015 SCC OnLine SC 1266, decided on 02.12.2015]

High Courts

Bombay High Court: Deciding on the question whether a couple having their native place in particular city or state can file for divorce in Family Court situated in another city or state, a bench comprising V.M. Naik & P.B. Varale, JJ  has ruled that when such a question is raised, the Family Court must first address the issue of jurisdiction, before proceeding with the case.

In the present case, the wife had appealed in the High Court against the divorce granted by the Family Court at Nagpur on the grounds that since no cause of action arose there, the Court did not have jurisdiction to entertain and decide the petition. She also denied the allegations of cruelty and desertion made against her.

The Court noted that neither the marriage was solemnised in Nagpur, nor did the couple reside there at any time. When her husband moved to Nagpur she did move there with him. It was further noted that despite the specific objection of the wife that the Petition should not be entertained by the Family Court, it did not frame the issue with regard to the jurisdiction. The Court set aside the judgment and remanded the case back to the Family Court for framing and deciding the issue of jurisdiction and then deciding the case on merits. Kalpana Dhone vs. Gorakhnath Govinda Dhone2015 SCC OnLine Bom 4709, decided on July 8, 2015

High Courts

Himachal Pradesh High Court– While deciding the present divorce matter wherein repeated false and frivolous allegation of adultery were made by the appellant wife against the respondent husband, a bench of Sanjay Karol, J., held that the said allegations were made out of vengeance and were unverified and unsubstantiated. The Court dismissed the appeal made by wife and further held that the false allegations of adultery made by the appellant were not unintentional and have affected the respondent’s reputation in the society, thus amounting to cruelty.

According to the facts, appellant got married to the respondent and two children were born out of the wedlock. But with time incompatibility prompted the parties to live separately. The appellant made allegations that the respondent was having illicit relationship with his sister-in-law which were repeated in a petition filed by the appellant under Section 125 of Code of Criminal Procedure. However, the respondent husband claimed that the allegations which were false have caused grave mental cruelty and the marriage has broken out irretrievably. The husband filed for divorce on such grounds.

While deciding, the Court referred to Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, (2003) 6 SCC 334 where it was noted that conscious and deliberate statement delivered with pungency placed on record through pleadings cannot be ignored lightly or brushed aside while determining acts of cruelty in a petition for divorce. The Court while upholding the decision of the Trial Court of granting divorce on account of cruelty, observed that as there is reasonable doubt in the mind of the respondent that it would be harmful to live with his wife any further. Moreover, he cannot be expected to live with his wife due to the serious and unsubstantiated allegations of adultery amounting to cruelty. Monika Sharma v. Kuldeep Kumar Dogra2015 SCC OnLine HP 1856,  decided on 31.07.2015

Supreme Court

Supreme Court: In an interesting case that came before the Court where the respondent, after receiving an ex-parte decree of divorce, had continued to live with the appellant and then consequently marrying another woman, the bench of JS Khehar and SA Bobde, JJ was confronted with the question that whether the husband had committed offence under Sections 493 and 494 of the IPC.

Considering the fact that the ex-parte decree of divorce was set aside by a subsequent order, the Court held that the matrimonial tie between the appellant and the respondent, will be deemed to have subsisted during the entire period under reference (08.01.1994 to 23.06. 1994 i.e. the date of order granting ex-parte decree of divorce to date of second marriage of the husband). Hence, it was held that the charge against the respondent is not made out, under Section 493 IPC, because the respondent could not have deceived the appellant of the existence of a “lawful marriage”, when a lawful marriage indeed existed between the parties, during the period under reference.

Regarding the compoundable offence under Section 494 IPC, the Court took notice of the fact that not only the respondent had entered into a second marriage and had fathered 2 children but also the appellant had begotten a son from her second marriage. Acting upon the request made the appellant to compound the offence but on awarding a reasonable cost to her, the Court held that the best course for the parties is to settle their dispute amicably and hence, directed the respondent to pay a sum of Rs. 5,00,000 to the appellant, thereby, compounding the offence under Section 494 IPC. Ravinder Kaur v. Anil Kumar, 2015 SCC OnLine SC 359, decided on 09.04.2015

Supreme Court

Supreme Court: Dealing as to whether the provisions of the U.P. Government Servant Conduct Rules, 1956 which talks about the removal of a Government Servant from service for contracting another marriage during existence of the first marriage without permission of the Government is violative of Article 25 of the Constitution,  a bench of T.S. Thakur and A.K. Goel JJ, upheld the removal of the Government servant from the service on the ground that Conduct Rules mandates monogamy which is a social reform, and the State is empowered to legislate with regard to social reform under Article 25(2) of the Constitution notwithstanding the fact that it may interfere with the right of a citizen freely to profess, practice and propagate the religion.

In the instant case, the appellant-an employee in Irrigation Dept, Government of U.P. was removed from the service by the disciplinary authority on the basis of the finding of the report by the NHRC in an enquiry proceeding that the appellant performed the second marriage without dissolving the first marriage which is in violation of Rule 29(1); of the U.P. Government Servant Conduct Rules, 1956. The High Court upheld the decision of the disciplinary authority on the finding that the petitioner never informed the department about divorce with the first wife and also did not informed anything about his second marriage. The appellant filed an appeal before this court and questioned the validity of the impugned Conduct Rules as being violative of Article 25 of the Constitution.

The Court observed that the High Court was justified in holding that the punishment of removal could not be held to be shockingly disproportionate to the charge and did not call for any interference. The Court stated that “though the personal laws of the Muslims permits having as many as four wives but it could not be said that having more than one wife is a part of religion. Any law in favour of monogamy does not interfere with the right to profess, practice and propagate religion”. The Court relied on Javed v. State of Haryana (2003)8 SCC 369, and stated that “what is protected under Article 25 is the religious faith and not a practice which may run counter to public order health and morality”. The Court further stated that “polygamy is not an integral part of religion, and monogamy is a social reform and the State is empowered to legislate with regard to social reform under Article 25(2)(b) of the Constitution notwithstanding the fact that it may interfere with the right of a citizen freely to profess, practice and propagate the religion”, and accordingly held that the Conduct Rules does not violate Article 25 of the Constitution. Khursheed Ahmad Khan v. State of U.P., 2015 SCC OnLine SC 105, decided on 09-02-2015.

High Courts

Bombay High Court: Dismissing a plea by a Parsi man to declare his 15 year old marriage to a Hindu woman null and void as their wedding was arranged in accordance with Hindu vedic rites although they belonged to different religions, a bench comprising of V K Tahilramani and A R Joshi, JJ held that there was no merit in the case and that the plea was barred by law. In this case, the appellant-husband had filed a plea for divorce on grounds of cruelty and desertion after his wife moved out of matrimonial home and later withdrew it to file a petition for nullity of marriage claiming he was not a Hindu at the time of marriage. This plea was rejected by the Family Court after which he filed the present appeal.

The Court after listening to arguments from both sides, stated that if according to the appellant, the parties had got married as per Hindu vedic rites and he had not converted to Hindu religion at the time of marriage then why was he seeking the decree of nullity under the provisions of the Hindu Marriage Act? The judges quoted many judgments including the case of Neeta Kirti Desai vs Bino Samuel George 1998 (1); BomCR 263 where it was held that rights under Hindu Marriage Act, 1955 such as restitution of conjugal rights, judicial separation, nullity of marriage and divorce could be invoked only if both spouses followed Hindu religion (Section 2, Hindu Marriage Act, 1955).

The petition was also dismissed on grounds that it was a belated plea and that the appellant husband could not take advantage of his own wrong. The Court observed that the appellant had admitted that he got married to the respondent voluntarily in 1999 and that there was a delay of 12 years till the time he filed a plea in Family Court and in between a baby boy was born to the couple in 2001. The Court stated that no reason was pointed out to show what compelled the appellant to suddenly realise that he belonged to a different religion and seek nullity of marriage and thereby rejected his plea. Viraf Phiroz Bharucha vs. Manoshi Viraf Bharucha, 2014 SCC OnLine Bom 1510, decided on 13.10.2014

Supreme Court

Supreme Court: Deciding a case of domestic violence, where the decree of divorce had been obtained subsequently, the Court held that an act of domestic violence once committed, subsequent decree of divorce will not absolve the liability of the respondent from the offence committed or to deny the benefit to which the aggrieved person is entitled under the Protection of Women from Domestic Violence Act, 2005 (DV Act) including monetary relief under Section 20, Child Custody under Section 21, Compensation under Section 22 and interim or ex parte order under Section 23 of the DV Act. 

In the present case, the appellant obtained an ex parte ‘Khula’ from Mufti under the Muslim Personal Law on 09.05.2008 and filed a petition under Section 12 of the DV Act on 29.09.2009 alleging that the respondent was not providing maintenance to her and her child under Sections 8 to 23 of the DV Act. The bench of Sudhansu Jyoti Mukhopadhaya and S.A. Bobde, JJ, considering the fact that the respondent had challenged the ex parte ‘Khula’ and had filed a petition for restitution of conjugal rights, held that it cannot be concluded that the decree of divorce was granted on 09.05.2008.

Moreover, the Court was of the opinion that even if after obtaining the decree of divorce, the wife who had shared the household in the past but was no longer residing with the husband, can file a petition under Section 12 of the DV Act if subjected to domestic violence seeking relief under Section 18 to 23 of the DV Act. In the present case, where the parties were represented by Shilpa Singh and KC Dua, the alleged domestic violence took place between January, 2006 and September, 2007. Hence, the Court held that even if it is accepted that the appellant had obtained ex parte ‘Khula’ under the Muslim Personal Law from the Mufti on 09.05.2008, the petition under Section 12 of the Domestic Violence Act, 2005 was maintainable. Juveria Abdul Majid Patni v. Atif Iqbal Mansoori, Criminal Appeal No. 2069 of 2014, decided on 18.09.2014

To read the full judgment, refer SCCOnLine